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Ralph Leon Burton v. Matthew Cate

February 29, 2012

RALPH LEON BURTON,
PETITIONER,
v.
MATTHEW CATE, WARDEN, AND EDMUND G. BROWN JR., THE ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, RESPONDENTS.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Supplemental Report and Recommendation ("R&R") (ECF No. 32) of Magistrate Judge William V. Gallo, filed on December 27, 2011, recommending that the Court grant Respondent's Motion to Dismiss (ECF No. 6) and deny Petitioner Ralph Leon Burton's Motion for Evidentiary Hearing (ECF No. 20).

I. Background

On October 16, 2006, Petitioner pleded guilty to one count of rape in violation of Cal. Penal Code § 261(a)(2) and oral copulation by force in violation of Cal. Penal Code § 288(a)(c)(2) committed on February 25, 2006. On November 14, 2006, Petitioner was sentenced to eight years of imprisonment. Petitioner did not appeal his convictions or sentence.

On September 30, 2007, Petitioner's Petition for Writ of Habeas Corpus was filed in the Superior Court of California for the County of San Diego. On October 8, 2008, the Superior Court held a hearing and denied the Petition.

On May 15, 2009, Petitioner filed a Petition for Writ of Habeas Corpus in the California Court of Appeal. On August 5, 2009, the Court of Appeal denied the Petition. On August 8, 2009, Petitioner filed a second Petition for Writ of Habeas Corpus in the California Court of Appeal. On October 20, 2009, the Petition was denied. On October 27, 2009, Petitioner filed a Petition for Writ of Habeas Corpus in the California Supreme Court. On June 9, 2010, the California Supreme Court denied the Petition.

On August 27, 2010, Petitioner initiated this action by filing his Petition for Writ of Habeas Corpus in this Court. (ECF No. 1).

On November 16, 2010, Respondent filed a Motion to Dismiss. (ECF No. 6). Respondent contends that the Petition is barred by the 1 year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). On February 15, 2011, Petitioner filed an Opposition to the Motion to Dismiss. (ECF No. 14). Petitioner contends that he is entitled to sufficient equitable tolling to overcome the statute of limitations provided by AEDPA on the grounds that he was ignorant of the law and there were state-created impediments to his filing a petition for writ of habeas corpus. On March 8, 2011, Respondent filed a Reply. (ECF No. 17). On April 26, 2011, Petitioner filed a Motion for Evidentiary Hearing. (ECF No. 20).

On June 17, 2011, the Magistrate Judge issued a Report and Recommendation recommending that the Court grant Respondent's Motion to Dismiss and deny Petitioner's Motion for Evidentiary Hearing. (ECF No. 21). The Magistrate Judge found that the statute of limitation was not tolled for a total of 1 year 6 months and 10 days. The Magistrate Judge concluded that the Petition was barred by the 1 year statute of limitations set forth in AEDPA.

On August 24, 2011, Petitioner filed Objections to the Report and Recommendation. (ECF No. 24).

On September 28, 2011, this Court issued an Order adopting the Report and Recommendation's finding that the statute of limitation for Petitioner to file the Petition in this Court was not tolled for a total of 1 year 6 months and 10 days, but referring the matter to the Magistrate Judge for further development of the factual record "on the issue of whether Petitioner suffered an impediment pursuant to 28 U.S.C. § 2244(d)(1)(B) and whether Petitioner is entitled to equitable tolling for any of the period from January 13, 2007 to July 27, 2007." (ECF No. 25 at 8).

On October 6, 2011, the Magistrate Judge issued an Order requiring further briefing. (ECF No. 26). On November 16, 2011, Respondent filed a Supplemental Brief and Supplemental Lodgments. (ECF Nos. 29-30). Respondent contends that Petitioner is not entitled to equitable tolling in an amount sufficient to overcome the statute of limitations provided by AEDPA. On December 14, 2011, Petitioner filed an Opposition. (ECF No. 31). Petitioner contends that he is entitled to equitable tolling in an amount sufficient to overcome the statute of limitations provided by AEDPA.

On December 27, 2011, the Magistrate Judge issued a Supplemental Report and Recommendation recommending that the Court grant Respondent's Motion to Dismiss and deny Petitioner's Motion for Evidentiary Hearing. (ECF No. 32). The Magistrate Judge found that Petitioner is entitled to an 28 days of equitable tolling; however, the ...


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